Libel suits & Unintended Consequences

Going through the various thoughtful and erudite comments regarding freedom of speech certain practical conclusions can be drawn.

1) One has total freedom of speech if no one cares what you say

2) Anonymous statements and blogs are much freer and safer than those blogs or media in which the author is known. This is because there is a major barrier to first identifying the person you might want to sue.

3) Comments that are clearly seen by the average person as motivated totally to hurt another are much more readily restricted than those that are possibly motivated by good or neutral intentions.

4) Comments made about rich and powerful people are more risky than about someone who has no money and is not influential.

5) Free speech is much more likely to be allowed if the attempts to suppress it leads to a more negative view of the focus of the comments than the comments itself.

7) Free speech is more likely if the publicity around the attempt to suppress it brings to light negative information that is more harmful to the person's reputation than the original claims.

8) Newspapers and other public media are much safer places to express views which are critical of others. While the blogs are very accessible and cost nothing to express views - they are completely vulnerable to extortion of those who have the time and money to sue or at least threaten to sue.

In view of the above, it would seem that if the issues recently suppressed were picked up by newspapers or anonymous blogs, the likelihood of free speech being suppressed would be much less. The fear of antagonizing a newspaper - because of the negative publicity that would be generated and uncovered - would minimize the likelihood of attack and also would minimize the likelihood of successfully suppressing the view. In addition the newspaper has the resources that would make any attack a financially costly and uncertain enterprise

It is ironic that the recipients of the greatest benefit from this situation are Rabbi Tropper and Thomas Kaplan. It is also interesting that the issues being criticized were introduced by the R' Tropper's ardent defender - Roni. The person who precipitated the present situation will must likely find that it has become a tar baby. A classic case of the Law of Unintended Consequences.

NY Assembly passes gay marriage bill

NY Times

ALBANY — The State Assembly approved legislation on Tuesday night that would make New York the sixth state to allow same-sex marriage — a pivotal vote that shifts the debate to the State Senate, where gay rights advocates and conservative groups alike are redoubling their efforts.

In a sign of how opinion in Albany has shifted on the issue, several members of the Assembly who voted against the measure in 2007 voted in favor of it on Tuesday. The final vote was 89 to 52, including the backing of five Republicans.

Supporters of the bill aggressively sought new votes, particularly from Assembly members whose districts lie within Senate districts where a senator’s vote is believed to be in play. As a matter of strategy, same-sex marriage advocates said that they hoped to use those votes as a way to leverage support from senators who are worried that supporting the measure could cost them politically.

“The margin of victory and the balance of where the people come from who voted for this is broadening,” said Daniel J. O’Donnell, a Democratic assemblyman from the Upper West Side who led the effort in the Assembly to gain support for the bill. “The state is demanding that we provide equality, and that’s the message here.”As the Assembly prepared to vote on Tuesday, advocates on both sides of the issue were gearing up for campaigns to sway undecided senators.[...]

Prohibitions - need to desire & yet avoid them

Shaloh (Asarah Mamaros 3-4:28): ... Chullin (109b): Yalsa said to her husband R’ Nachman: “We have a rule that whatever the Torah prohibits there is something similar to it which is permitted. Blood is prohibited while liver is permitted. A woman is prohibited as a nidah but is permitted when she is pure, of a domesticated animal is prohibited but is permitted from non‑domesticated beasts, pig is prohibited by the similar tasting shebuta is permitted, the girutha bird is prohibited but the similar tasting tongue of fish is permitted, a married woman is prohibited but a divorce is permitted even though her former husband is alive, one’s sister in law is prohibited but she is permitted when the brother dies, a non‑Jewish woman is prohibited but a yofas to’ar is permitted. I want to know what it is like to eat meat cooked in milk?” R’ Nachman told the cook to prepare fried udder for her. This seems problematic. Why was such a distinguished woman such as Yalsa discussing such an apparently trivial topic with her husband? It is doubly puzzling why our Sages saw fit to record this in the Talmud? My father explained that this is based on the principle that all that is prohibited is because G‑d wants it prohibited – not because it isn't pleasurable. Therefore the sole reason for not enjoying these pleasures is because G‑d prohibited them. This is similar to Toras Cohanim(Kedoshim): A person should not say that it is impossible to eat pig but he should say that it is possible but what can he do since G‑d has prohibited him from eating it. Yalsa wanted to know what she was missing by observing the prohibition of meat and milk. By knowing what pleasure she was prohibited she could have a genuine desire for the prohibited pleasure that she would refrain from solely because of G‑d's command. That is why the taste of the shebuta fish is like that of pork so that a person can no what pork tastes like and know that it is good and desire it but at the same time refrain from eating it solely because G‑d told him not to eat it. The Torah has forbidden us to eat meat and milk. She wanted to know what meat and milk tasted like so she could desire and then not eat it because G‑d said not to. Therefore her husband told her to eat fried udder which has the taste of meat and milk.

Rambam(Shemona Perakim 6): We find that to have a strong desire to sin is much better and perfect than not having any desire and not suffering from avoiding the sin. … In fact our Sages say that,“the greater the person is the greater is his yetzer harah.” Not only that but they say that the reward for self‑control is proportional to effort required for that self‑control, “According to the suffering is the reward.” Furthermore they caution a person from saying, “I naturally don’t have a desire for this sin even if the Torah hadn’t prohibited this.” That is expressed by R’ Shimon ben Gamliel:” A person should not say that it is impossible for me to eat meat and milk together or that it is impossible for me to wear shatnez or that it is impossible for me to have sexual relations with this woman who is prohibited by the Torah. But in fact it is possible but G‑d has decreed that it is prohibited.”… However those things that the philosophers say are bad and that it is much better that a person not have desire for them – that refers to things which are widely perceived by people to be bad - such as murder, robbery, stealing, fraud, harming an innocent person, harming someone who has helped you, ridiculing parents and other similar matters. These well known things are what our Sages said: “That even if they had not been prohibited by the Torah it would have been assumed that they were prohibited.”… These well known wrongs are called by some scholars as “rational mitzvos”. One who desires to violate a “rational mitzva” is obviously an imperfect being. That is because a perfected person has absolutely no desire to do this type of evil and is not upset by avoiding them. However those things which our Sages were saying that it is best to overcome a desire for them - are the religious mitzvos. Because if the Torah had not been given they would not be viewed as bad at all. For this type our Sage say that it is it is only the Torah which prevents a person from doing them.

Chareidi housing disaster

YNET reports

Following a High Court ruling, the Defense Ministry decided two weeks ago to hand over to the residents of the West Bank village of Bilin 185 acres which they claimed had been expropriated from them, a move leading to a possible new route separation fence route.

The direct result of the ministry's decision is that a project including 1,100 housing units for the ultra-Orthodox public in Modiin Illit's Matityahu neighborhood is slated to be canceled.

"This may worsen the housing shortage in the haredi sector, which has yet to receive a constitutional response," says Dr. Rina Degani, research director and managing director at Geocartography, which recently examined the situation of the haredi housing market.

According to the findings of a Geocartography survey, the growth rate in the haredi sector creates a fixed demand for some 6,500 housing deals a year – about 6.5% of all deals in the residential real estate field carried out in the past two years.

Modiin illit has some 40,000 residents due to the comfortable housing prices and the communal fabric, which meets the target audience's demands.

According to a study carried out by Geocartography's economic division, the demand for apartments in the haredi sector requires the construction of at least 4,000 new flats every year, in addition to some 2,500 second-hand apartments. [...]

Mekubal's points to ponder

mekubal wrote:

For those who readily wish Rabbi Dr. Eidensohn to press on despite danger of a lawsuit. You are giving him very dangerous advice. While I believe that he would be offered some sort of protection on account of Israeli privacy laws, on the other hand he can be in serious danger and here is why.

I realize that I asserted in a previous comment that I believed( and to a certain extant still do) that he has been trolled. However, given the way things have unraveled and that through phone conversations as admitted that he owns this blog, and that his only true defense would be to lie and say that he doesn't, something I don't believe he would do as an Orthodox Jew, we come down to the greater problem of his potential liability.

Having not fully navigated the Israeli system I will leave that out for now, in part because my knowledge there is lacking, and secondly because that is not the only place that he is liable to damages.

I will start with the US. Under US and European law libel is, "the printed communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image". Pursuant to that the Supreme Court Rulings of New York Times Co. v. Sullivan, Gertz v. Robert Welch, Inc, and Hustler Magazine v. Falwell, have served to limit and define the limits of free speech in printed media.

Furthermore Supreme Court decision Stratton Oakmont, Inc. v. Prodigy Services Co., as well as Congressional Act 47 U.S.C. § 230(the Cyberlibel law) did two primary things of which the owner of this blog has to concern himself. First it made owners of moderated blogs liable for the postings of their commentators as well as their own postings. Secondly it allowed for libel suits where ever said material was or had been viewable. In other words within the US you would be open to the possibility of being sued 50 separate times.

Then we can move on to Europe most especially nations such as England, France, and Spain which have Universal Jurisdiction laws, allowing plaintiffs who are not present within their borders to file complaints against those who are not present within their borders. All three also allow someone to be tried in abstentia for such civil cases. To put that into plain English a lawsuit can be filed there, and if R' Eidensohn is not able to make a defense in those nations he may be found guilty without ever being able to offer a defense.

Furthermore both in the US and England the person in question does not need to be specifically mentioned but only indirectly, but knowingly referenced.

If these things cannot be undeniably proven you have once again opened yourself to the possibility of lawsuit on an international scale if the referenced person truly wishes to pursue such action. As a moderated blog, even allowing comments like that to go up, you open yourself to the possibility of lawsuit, as you have to approve them. To elevate them to a main post with no substantial proof shows your endorsement and can be considered "real malice" as "real malice" is defined in US and European law as disregard for the truthfulness of the statement.

If you want to be successfully sued for libel than by all means follow the advice of Jersey Girl. Otherwise perhaps it is time to take more care in what commentators post

and what you as the blog owner allow them to post.

Perhaps these latest problems, though I will admit that there was an aspect of bullying to them, especially in the requirement to remove any and all mention, despite that though, perhaps it was Hashem's way of saying it is time to clean it up.

Is it slander to say R' Bomzer is controversial?

An interesting question regarding whether a person is slandering another is whether the person's intent was solely to cause harm and whether the evidence he used would lead the average person to conclude what he did. For example an old post indicated that Rabbi Herbert Bomzer's conversion are viewed as problematic by a number of rabbis. At the same time Rabbi Bomzer was defended as a very distinguished Rabbi and talmid chachom whose conversion are not problematic. Is is slander to report that some distinguished rabbis do not approve of his conversion? Is it slander to report that there are other rabbis who disagree with these rabbis and hold that Rabbi Bomzer's conversions are beyond reproach?

Bullying and free-speech

Recipients and Publicity said...

RaP's Farewell PostI am truly sorry that you were bullied into silence. I hate bullies and bullying. It is not a cultured, let alone a Jewish, attribute.

Two quick questions for Rabbi Dr. Eidensohn/da'as torah:

Did you consult with a competent lawyer or lawyers in Israel familiar with this area of law, relating to the alleged "libel", on a blog yet, regarding your rights and defenses in the face of the alleged threatening Email you received?

I am positive that there must be those who would defend you, probably even pro bono (for free). It can still be done!

Hopefully you have retained digital copies of all the posts you deleted for your own files if further clarification needs to be made and for your own legal protection!

I assume that you have no further interest in receiving and posting my additional posts and comments on this blog from this point on.

As you know I have shared your main concerns and I have spent well over a year researching and debating the issues of the problems at hand, and this probably means that I will no longer participate in your blog.

I have no regrets so please do not feel bad for me, and I am happy to have served as a catalyst in unmasking and showing the world the true colors of those who have bullied you, and by association Rav Shternbuch and the BADATS, into silence, for who will yet have to answer in ways that they will not be able to intimidate into silence.

Kol tuv!

May 11, 2009 2:15 PM

Jersey Girl said...

In the US, there is freedom of speech and blogs fall under "freedom of the press, first amendment".

In the US, what this attorney tried to do to you would be considered a SLAPP (Strategic law suit against public policy) in order to silence your First Amendment right of Free Speech.

In the US, an attorney could be disbarred for filing a SLAPP and reprimanded for even threatening it.

Furthermore in many US states, you could sue someone who files a SLAPP suit against you and collect damages. (Anti SLAPP States).

If you have no right of freedom of speech in Israel, then you may as well just pack up and forget blogging because now, anyone can control every word you write just by threatening you with a lawsuit.

In the US, there are certain conditions that have to be met for libel:

1. first of all "the person who is not to be mentioned" is a wealthy and well known celebrity so the burden of proof of libel would be virtually impossible to meet. It is unheard of to get a libel judgment against a famous person because he has to prove absolute malice in your intentions. You can look at "rags" such as the National Enquirer and see that this is true.

2. There has to be no other reason for your post except that you wish to malign the person. This is impossible to prove true in this case since you are trying to understand halachic implications of many issues.

3. what you write has to be untrue and it has to be proven that you KNEW it was untrue. This is also not the case since it is quite obvious that you believe everything you write.

4. opinion - most of what is posted on this blog is opinion and not being presented as fact and therefore cannot be libel. This is why anonymous comments cannot be libelous. Nor can you be held accountable for anonymous comments.

5. no actual injury. The person who does not want to be mentioned in a blog has not suffered any financial or other provable injury.

6. Fair comment on a matter of public interest. Obviously the future of the Jewish religion is of importance to both you and the posters of comments.

7. Religious privilege - it is normal for a Rabbi such as yourself to issue religious opinions and rulings on a topic. To attempt to restrain your right of Free Speech, by threatening a SLAPP suit, in the US would also be restraining your Right to Freedom of Religion. In the US, this is a serious crime and punished as such. What if Rabbis could never say "such and such is not kosher?" That is restraint of Freedom of Religion.

I would recommend that you get in touch with Orthomom a wonderful blogger who was sued for libel. She prevailed and I am pretty sure that her attorney was free.

The threat of a SLAPP suit against your blog is indicative of the level of control that these missionaries have on the Orthodox Jewish world.

Daas Torah seemed to be a beacon of hope in what appears to be a lost battle. Now, that this blog is completely under the control of Evangelicals who are restraining MY rights of Free Speech, why even bother to fight?

I live in the US, in fact in the same state and county as the "person who does not want to be mentioned" on a blog.

Perhaps, I am the right person to file the anti SLAPP suit against the "person who does not want to be mentioned", because it is MY First Amendment Right of Free Speech is being restrained.

Furthermore, if you want to somehow host this discussion from my IP address (or something like that), I would love to be sued for libel for blogging about the "person who does not want to be mentioned".

I have a friendly relationship with some of the writers from the local newspapers and also in Brooklyn, where I used to write for a Jewish paper. My goal would be to get the name of the person who does not want to be mentioned in a blog in as many Jewish and secular newspapers as possible.

Most journalists welcome a SLAPP suit because it is lots of free publicity for their publication and cause and in the end, they usually get to collect a few thousand dollars in an anti SLAPP suit on top of it.

I would really LOVE to be sued in a SLAPP by "the person who does not want to be mentioned in a blog". Then I could publicize and bring this cancerous issue among the Jewish people to light.

Maybe I should just start a blog for the sole purpose of discussing "the person who does not want to be mentioned in a blog" and his goal of destroying Judaism with his billions of dollars of oil money and his puppet quasi Rabbis.

If this is a topic that posters are interested in, I will do it.

Comment feature restored

Commenting has been restored. Due to the threatened legal action I have removed certain postings. I would appreciate it if any one notices any mention of "he who is not to be mentioned" left on the blog to notify me.

Battle over gay marriage in NY

NYTimes

Pose the question “Would you vote to make same-sex marriage legal?” within the gilded State Senate chamber, and you’ll hear a lot of hedging.

Senator Vincent L. Leibell, a Republican who represents parts of Westchester, Putnam and Dutchess Counties, prefers civil unions to marriage. Still, he acknowledged that “society changes over time,” and said that he might not make up his mind until the last minute.

Senator James S. Alesi, a Republican from Rochester who is considered to be another potential swing vote, has issued only vague statements hinting that he is open to voting yes. But he also said, “My public opinion has not been stated yet, and it probably won’t be for a while.”

With six weeks left before the Legislature adjourns for the year, uncertainty surrounds the fate of Gov. David A. Paterson’s bill to legalize same-sex marriage, and lobbying is intensifying.

The measure is expected to easily pass the State Assembly, which approved a similar bill in 2007 and has scheduled its vote for Tuesday.

That means the fate of the legislation will most likely be decided in the closely divided 62-member State Senate.

There, proponents believe they have about two dozen of the 32 votes needed for approval, including those of 19 Democrats who have signed on as sponsors of the measure. [...]

Law & free speech on Internet -

mekubal wrote:

I am fairly clueless about Israeli law so I must ask, can cease and desist letters be sent via email in Israel?

From a similar case I personally had with a forum I posted on, there are a few things I do know about Israeli law.

1) You are not responsible for content that others post upon your blog.

2) Just because the blog has your name on it, does not mean that they can literally sue you or file a police complaint.

3) In order to bring action in Israel they must first directly link you through your IP address to the blog.

4) Israeli privacy laws forbid you internet-provider from disclosing your I/P account information(the vital and missing link) for any reason other than vital and immediate nation security.

5) If your internet provider does disclose your account information thus making you liable to said lawsuit and police complaint, they can be held liable for any damages that you accrue. In other words you can turn around and sue them.

All that being said. I think that you have in general just been scammed. Though since this is the internet I believe the proper terminology is Trolled.
============================
Daas Torah responded:

The above is nice in theory. But it obviously is not of relevance when the Blog is not anonymous, that a law suit hasn't been filed and that the main concern is intimidation. It is obvious that no legal process would support a law suit simply because a public figure's name is mentioned. Yet that is what the lawyer's email stated.

It is an indication of insecurity when a person can not tolerate any criticism and needs to present a carefully orchestrated view of himself to the world.

An alternative, though not necessarily incompatible explanation. is that he fears that an insignificant blogger can actually ruin his reputation. If Rabbi Tropper believes that I have the amazing power of making the Bedatz bend to my will and believes that I have succeeded in forcing them to become defenders of Rabbi Slikfin - then a naive young man might believe that I have the power to derail his run for glory - or at least be the source of bad luck. This absurd claim had been posted on Rabbi Tropper's blog - but it seems he must have realized how stupid it sounds and it is has been removed. But you the original from Rabbi Tropper's blog is posted below here

Abuse & Punishment

I heard another disturbing story about abuse yesterday. The person told me of a well known personality who has definitely abused children. So why wasn't anything done about it? It seems that he has been declared to no longer be a pedophile because he hasn't abused any one recently. It seems two rabbis have certified him to have stopped.

My question is 1) why wasn't it publicized when it was clear that he was a molester 2) why are there no consequences for his actions. 3) on what basis has he been certified not to be a molester. 4) it seems someone just filed a complaint with the police so he obviously hasn't stopped.

This individuals is known as a generous soul who regularly gives rides to kids and his house is frequented by neighborhood children.

When it comes to molesters the only issue of concern is stopping them. But this is a flawed process in which there is no transparency here as to the process that certifies that he has stopped. Community families are not informed that there is pedophile in their midst so that if they don't want to take the risk with their kids they are at least forewarned.

In addition there is absolutely no issue of punishment or even payment for the damage that they have done. One person told me he has been paying $400/ month for six years for a teenager who was destroyed by a molester. There was no suggestion that the molester needed to pay. In the many decrees of the Gaon and Rishonim there is clearly a process of not only punishment but also of placating the victim - what happened to these factors? I am in the process of finding out the answers.